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Advisory Committee on International Economic Policy: Letter Opinion for the Deputy Legal Adviser, Department of State [April 17, 1996]
"As you requested, we have reviewed the question whether members of the Advisory Committee on International Economic Policy ('IEP Advisory Committee') would occupy an 'Office of Profit or Trust' within the meaning of the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8. As we have advised you before, we reject the sweeping and unqualified view, expressed on one occasion by our Office, that federal advisory committee members, as such, are subject to the Emoluments Clause. […] The members of the IEP Advisory Committee meet only occasionally, serve without compensation, take no oath, and do not have access to classified information; furthermore, the Committee is purely advisory, is not a creature of statute, and discharges no substantive statutory responsibilities. We therefore believe that the members of the IEP Advisory Committee do not occupy 'Office[s] of Profit or Trust' under the Emoluments Clause. We do not address the argument that the Office of Government Ethics' longstanding test for determining who are Special Government Employees ('SGEs') should be substantially narrowed, so that members of State Department advisory committees would generally not qualify as SGEs, nor be subject, by reason of SGE status, to the Emoluments Clause, see Letter to Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Conrad K. Harper, Legal Adviser, Department of State (Feb. 13, 1995)."
United States. Department of Justice. Office of Legal Counsel
Dellinger, Walter E.
1996-04-17
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Eligibility of Citizens of Freely Associated States for HUD Financial Assistance: Letter Opinion for the General Counsel, Department of Housing and Urban Development [March 7, 1996]
"The Secretary of Housing and Urban Development may not make financial assistance, including assistance under section 8 of the United States Housing Act of 1937, available for the benefit of citizens of the Freely Associated States (Federated States of Micronesia, Marshall Islands, Republic of Palau) who have entered the Territory of Guam and the Commonwealth of the Northern Mariana Islands as non-immigrants pursuant to section 141 of the Compact of Free Association. I am replying to your letter of October 3, 1995, in which you inquire whether section 214 of the Housing and Community Development Act of 1980 (codified as amended at 42 U.S.C. § 1436a) ('section 214') precludes the Secretary of Housing and Urban Development from making financial assistance under section 8 of the United States Housing Act of 1937 available for the benefit of citizens of the Freely Associated States (Federated States of Micronesia, Marshall Islands, Republic of Palau) who are present in the Territory of Guam and the Commonwealth of the Northern Mariana Islands pursuant to section 141 of the Compact of Free Association. We conclude that it does."
United States. Department of Justice. Office of Legal Counsel
1996-03-07
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Legal Authority to Approve Changes in use of Property Under Section 414 of the Housing and Urban Development Act of 1969: Memorandum Opinion for the General Counsel, General Services Administration [March 5, 1996]
"The proposed sale of property at its fair market value in order to raise funds to build low and moderate income housing on different property constitutes a change in the use of property under section 414 of the Housing and Urban Development Act of 1969 and the terms of the deed of the 1974 sale of the property. The Department of Housing and Urban Development and the General Services Administration could approve the proposed sale of property to a public body without violating section 414."
United States. Department of Justice. Office of Legal Counsel
1996-03-05
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[Constitutionality of 13 C.F.R. § 124.103 Establishing Citizenship Requirement for Participation in 8(a) Program: Memorandum for Eric S. Benderson, Associate General Counsel, U.S. Small Business Administration, March 4, 1996]
"You have requested our opinion as to the constitutionality of a regulation of the Small Business Administration ('SBA'), 13 C.F.R. § 124.103, that limits eligibility for the SBA's 8(a) program for disadvantaged contractors to businesses owned by U.S. citizens. The SBA has defended the validity of its 8(a) citizenship requirement on the grounds that such a requirement is consistent with congressional intent. We agree with this conclusion, although we do so based upon a different legal analysis than the one relied upon by the SBA."
United States. Department of Justice. Office of Legal Counsel
1996-03-04
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Legality of Government Honoraria Ban Following U.S. v. National Treasury Employees Union: Memorandum to the Attorney General [February 26, 1996]
"Last year, the Supreme Court held that § 501(b) of the Ethics in Government Act of 1978 -- which imposes a government-wide ban on the receipt of honoraria by any government employee -- violates the First Amendment. […] This memorandum examines, at the request of the Civil Division, the question what, if any, portion of § 501(b) survives the NTEU [National Treasury Employees Union] decision. As explained more fully below, we conclude that the answer to this question must be 'none.' Following the Supreme Court's invalidation of § 501(b) with respect to the vast majority of the statute's targeted audience, what remains is a very different statute from the one Congress enacted. We cannot know, nor should we speculate, whether Congress would have enacted an honoraria ban as limited in scope as that portion of § 501(b) which the Supreme Court declined to strike down. The special constitutional solicitude accorded First Amendment rights, moreover, cautions against any intrusion upon those rights without the prior reflective judgment of the legislature."
United States. Department of Justice. Office of Legal Counsel
1996-02-26
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Transactions Between the Federal Financing Bank and the Department of the Treasury: Memorandum for Edward Knight, General Counsel, Department of the Treasury [February 13, 1996]
"This opinion reviews a possible Federal Financing Bank [FFB] sale of loan assets to the Civil Service Retirement and Disability Fund and other possible related transactions between the FFB and the Department of the Treasury, and concludes that the contemplated transactions would be permissible under existing law."
United States. Department of Justice. Office of Legal Counsel
1996-02-13
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Brady Act Implementation Issues: Memorandum Opinion for the General Counsel, Federal Bureau of Investigation [February 13, 1996]
"The Attorney General may impose an expiration date on the validity of a check, conducted pursuant to the Brady Act by the national instant criminal background check system ('NICS'), that authorizes the transfer of a firearm. Information from NICS may be disclosed to law enforcement agencies to further their criminal investigations, but disclosures may not be made for the purpose of establishing firearms registries and non-consensual disclosures may not be made for employment and licensing purposes. The Privacy Act places no restrictions on the Attorney General's express authority under the Brady Act to request information from federal agencies identifying individuals who fall within the categories of persons prohibited from possessing firearms."
United States. Department of Justice. Office of Legal Counsel
1996-02-13
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Alternatives for the Imposition of Condition on the Certification of Drug Transit and Producing Countries: Memorandum Opinion for the Attorney General [February 12, 1996]
"The President may impose certain conditions upon a drug producing or transit country seeking certification under section 490(b) of the Foreign Assistance Act of 1961. If he chooses to certify a country under section 490(b)(1)(B), he can withhold funds from the country to encourage compliance with a set of specified conditions. Alternatively, the President can determine not to certify a country in his annual certification report but inform the country that it might be recertified outside the annual cycle if it meets certain conditions. The first alternative offers greater flexibility to the President as, under the latter approach, the President is constrained in the exercise of his discretion by specific statutory requirements and his determination is subject to congressional review."
United States. Department of Justice. Office of Legal Counsel
1996-02-12
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Authority of the President to Restrict Munitions Imports Under the Arms Export Control Act: Memorandum Opinion for the Special Assistant to the President and Legal Advisor to the National Security Council [February 9, 1996]
"This letter addresses and explains the basis for the oral advice that we provided in early April 1995 regarding the President's authority under the Arms Export Control Act, 22 U.S.C. §§ 2751-2799aa-2, ('AECA') to restrict the import of certain munitions from the Russian Federation in furtherance of United States foreign policy. The question arises in connection with the Administration's plan, as part of a general program of eliminating Cold War restrictions on trade and economic cooperation with Russia, to take steps to remove Russia from the International Traffic in Arms Regulations ('ITAR') list, which provides that it is the policy of the United States to deny licenses for the import of defense articles originating in certain countries, including Russia. […] Russia's presence on the ITAR list means American businesses are not granted licenses necessary to import Russian munitions. Once Russia is off the ITAR list, there would be no general prohibition on gun imports from Russia. We understand that the issue concerns the negotiation of voluntary export restraints with Russia to ensure that, once Russia is removed from the ITAR list, munitions imports from Russia would not jeopardize public safety. The question has been raised whether the President possesses authority under the AECA to limit the import of munitions from Russia. We have concluded that restricting the import of Russian munitions to certain classes of firearms and ammunition is a legitimate use of the President's authority under the AECA to restrict the import of munitions in furtherance of United States foreign policy."
United States. Department of Justice. Office of Legal Counsel
1996-02-09
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Assistance by State and Local Police in Apprehending Illegal Aliens: Memorandum Opinion for the United States Attorney, Southern District of California [February 5, 1996]
"Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens for violating the criminal provisions of the Immigration and Naturalization Act. State and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws. State and local police may detain aliens reasonably suspected of a criminal violation of the immigration laws for periods of as long as 45 to 60 minutes when detentions of that length are necessary to allow for the arrival of Border Patrol agents who are needed for the informed federal disposition of the suspected violations."
United States. Department of Justice. Office of Legal Counsel
1996-02-05
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Immigration Emergency Fund: Memorandum for Stephen R. Colgate, Assistant Attorney General for Administration [January 26, 1996]
"The $20 million in the Immigration Emergency Fund for the reimbursement of states and localities for certain immigration-related assistance is available on an annual basis. You have asked us whether the $20 million in the Immigration Emergency Fund for reimbursement of states and localities for certain immigration-related assistance is available annually or whether a total of $20 million is available from the account for such expenses. We conclude that the $20 million is available annually."
United States. Department of Justice. Office of Legal Counsel
1996-01-26
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Whether the District of Columbia's Clean Air Compliance Fee May Be Collected from the Federal Government: Memorandum for Emily C. Hewitt, General Counsel, General Services Administration [January 23, 1996]
"The District of Columbia's Clean Air Compliance Fee is a tax and may not be imposed on the federal government, because the D.C. Council lacks authority to impose taxes on the property of the United States. This memorandum responds to your request for our opinion on whether the District of Columbia ('District') may collect from the General Services Administration the Clean Air Compliance Fee ('Clean Air Fee' or 'Fee') established by a District of Columbia statute, the Clean Air Compliance Fee Act of 1994 ('Act'), D.C. Act 10-387, reprinted in 42 D.C. Reg. 86 (Jan. 6, 1995). As discussed below, we conclude that the District may not collect the Fee with respect to property owned by the United States."
United States. Department of Justice. Office of Legal Counsel
1996-01-23
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Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges: Memorandum Opinion for the Counself to the President [December 18, 1995]
"On April 25, 1995, President Clinton nominated Mr. William A. Fletcher to be a judge on the United States Court of Appeals for the Ninth Circuit. See 141 Cong. Rec. 11,243 (1995). While Mr. Fletcher's nomination has been pending before the United States Senate, questions have arisen as to whether his appointment would violate 28 U.S.C. § 458 because Mr. Fletcher's mother, the Honorable Betty B. Fletcher, has served as a judge on the same court since her appointment in 1979. Section 458 of title 28 provides as follows: 'No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to any justice or judge of such court.' We have previously opined that 28 U.S.C. § 458 does not apply to presidential appointments of judges to the federal judiciary. […] In light of subsequent questions, you have asked whether we adhere to that position. For the reasons that follow, we do."
United States. Department of Justice. Office of Legal Counsel
1995-12-18
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Effect of Appropriations for Other Agencies and Branches on the Authority to Continue Department of Justice Functions During the Lapse in the Department's Appropriations: Memorandum for the Attorney General [December 13, 1995]
"During the recent appropriations lapse we prepared for you a memorandum on the authority of the Department to participate in congressional hearings that were held during an appropriations lapse. 'See Participation in Congressional Hearing During an Appropriations Lapse', 19 Op. O.L.C. [Office of Legal Counsel] (1995). This memorandum is intended to update that earlier memorandum in light of subsequent congressional enactments, particularly the Act providing appropriations for the legislative branch during the current fiscal year."
United States. Department of Justice. Office of Legal Counsel
1995-12-13
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National Information Infrastructure Protection Act of 1996
There are two ways, conceptually, to address the growing computer crime problem. The first would be to comb through the entire United States Code, identifying and amending every statute potentially affected by the implementation of new computer and telecommunications technologies. The second would be to focus substantive amendments on the Computer Fraud and Abuse Act to specifically address new abuses that spring from the misuse of new technologies.
United States. Department of Justice
1996
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Proposed Deployment of United States Armed Forces into Bosnia: Memorandum Opinion for the Counsel to the President [November 30, 1995]
"This is to provide you with our analysis of whether the President, acting without specific statutory authorization, lawfully may introduce United States ground troops into Bosnia and Herzegovina ('Bosnia') to help the North Atlantic Treaty Organization ('NATO') ensure compliance with the recently negotiated peace agreement. We believe that the President may act unilaterally in the circumstances here."
United States. Department of Justice. Office of Legal Counsel
1995-11-30
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Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991: Memorandum for Alan J. Kreczko, Special Assistant to the President and Legal Adviser to the National Security Council [November 16, 1995]
"You have asked for our opinion concerning the scope, if any, of the President's discretion to delay making the determinations that are prerequisite to imposing mandatory sanctions under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, codified in part as an amendment to the Export Administration Act at 50 U.S.C. app. § 2410c (the 'CBW Act'). We conclude that Act permits the President to delay making determinations that would trigger sanctions under this section, when the delay is necessary to protect intelligence sources or methods used for acquiring intelligence relating to CBW proliferation. You have also asked whether the President has any greater ability to delay a determination when the life of an intelligence source would be placed at substantial risk by the imposition of sanctions and no alternative reasonable means exists to exfiltrate or otherwise protect the source. This extreme case creates a conflict with the President's constitutional obligations and various of his statutory duties. In such circumstances, we conclude that the President can delay making a determination to protect the life of the source."
United States. Department of Justice. Office of Legal Counsel
1995-11-16
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Participation in Congressional Hearings During an Appropriations Lapse: Memorandum for the Attorney General [November 16, 1995]
"The Department of Justice has been informed that various congressional committees intend to hold hearings at which Department of Justice officials have been requested to testify, during the period in which the Department lacks appropriations to pay for the services of those officials. You have asked under what circumstances Department officials may participate in these hearings. […] The Antideficiency Act places a substantial limit on the functioning of federal officers and employees generally, including officers and employees of the Department of Justice. These limits extend to participation in congressional hearings conducted during a period of lapsed appropriations. During such a period, an officer or employee of the Department of Justice may participate in congressional hearings if he or she is a Senate-confirmed officer, if appropriated funds are available for his or her participation, if he or she is subpoenaed, or if the hearing falls within one of the categories set forth above."
United States. Department of Justice. Office of Legal Counsel
1995-11-16
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Secretary of the Treasury's Authority with Respect to the Civil Service Retirement and Disability Fund: Memorandum for the General Counsel, Department of the Treasury [November 10, 1995]
"You have requested advice from this Office on the Secretary of the Treasury's ('Secretary') authority with respect to the investment assets of the Civil Service Retirement and Disability Fund ('CSRDF' or 'Fund') during a debt limit crisis. […] As the discussion below reveals, we conclude, based largely on the express terms of 5 U.S.C. § 8348, that the statute empowers the Secretary to suspend the investment of additional contributions to the CSRDF and redeem prior to maturity Fund investment assets in order to avoid exceeding the debt limit. In addition, we conclude that, in exercising his redemption authority, the Secretary may, during a 'debt issuance suspension period,' redeem Fund investment assets based on the total amount of civil service retirement and disability benefits authorized to be paid during the period. Moreover, we conclude that redemptions so executed would free up debt issuance capacity under the debt limit, which could, in turn, be exhausted through the issuance of obligations of the United States to supplement Treasury's general cash account during a debt limit crisis. In addition, we conclude that the Secretary has discretion under the CSRDF statute to designate the length of a debt issuance suspension period, but that this discretion, though broad, is not unlimited."
United States. Department of Justice. Office of Legal Counsel
1995-11-10
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Authorization of Immigration Emergency Fund Reimbursements: Memorandum for Stephen R. Colgate, Assistant Attorney General, Justice Management Division [November 8, 1995]
"Section 404(b) of the Immigration and Nationality Act ('INA') established the Immigration Emergency Fund ('IEF'). On September 28, 1995, President Clinton determined that an immigration emergency existed within the meaning of § 404(b) and that a $6,000,000 reimbursement should be made available from the IEF to reimburse those who assisted in the enforcement of immigration laws in connection with the repatriation of aliens interdicted en route to the United States and being smuggled by organized international syndicates. As required by § 404(b)(1), the President certified his determination to the Judiciary Committees of the House of Representatives and the Senate on October 3, 1995. On September 28, 1995, the Deputy Attorney General, addressing a separate matter, but also acting pursuant to § 404(b) of the INA, authorized an $18,000,000 reimbursement to the State of Florida. On September 30, 1995, just prior to the October 1, 1995, commencement of the new fiscal year, the Pub. L. No. 104-31 ('Continuing Resolution') was approved. The Continuing Resolution provides funds and authority to continue various government programs, operations, and activities that would otherwise have experienced a lapse in appropriations and remains in effect until November 13, 1995, at the latest. You have asked for our opinion on two questions raised by the authorization of these reimbursements. First, you have asked whether they are prohibited from being made under the terms of the Continuing Resolution. Second, you have asked whether the terms of the IEF permit the $18,000,000 reimbursement authorized to Florida. We answer these questions in turn."
United States. Department of Justice. Office of Legal Counsel
1995-11-08
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Reassignment of Assistant Secretary of Labor Without Senate Reconfirmation: Memorandum Opinion for the Counsel to the President [November 2, 1995]
"Over the past few days, this Office has considered whether Senate reconfirmation of Anne H. Lewis as an Assistant Secretary of Labor is legally required. The answer to this question is clear: the Senate, having already confirmed Ms. Lewis as an Assistant Secretary of Labor, need not do so again."
United States. Department of Justice. Office of Legal Counsel
1995-11-02
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Constitutionality of Awarding Historic Preservation Grants to Religious Properties: Memorandum Opinion for the Solicitor, Department of the Interior [October 31, 1995]
"Establishment Clause of awarding government historic preservation grants to churches and other religious properties. In particular, and as we discussed earlier, we have considered whether the Supreme Court's recent decision in Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995), directly addresses the particular question you have raised. As discussed below, the Rosenberger decision, which deals with a form of government aid to religion significantly different from that at issue here, does not control the case you have presented. Accordingly, we have no occasion here to fully analyze the Rosenberger decision, nor to predict how it might apply in other contexts. Rather, our analysis is guided by Supreme Court case law developed prior to Rosenberger. We conclude that a reviewing court, applying current precedent, likely would hold that making historic preservation grants to churches and other pervasively sectarian properties is inconsistent with the Establishment Clause."
United States. Department of Justice. Office of Legal Counsel
1995-10-31
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Food and Drug Administration's Discretion to Approve Methods of Detection and to Define the Term 'No Residue' Pursuant to the Federal Food, Drug, and Cosmetic Act: Memorandum Opinion for the Assistant Administrator and General Counself, Environmental Protection Agency, and the General Counsel, Department of Health and Human Services [October 13, 1995]
"This memorandum responds to the Environmental Protection Agency's ('EPA') and the Food and Drug Administration's ('FDA') request for our opinion regarding the FDA's regulations implementing what is known as the 'DES proviso' to the Delaney Clause of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-393 (the 'Act'). Both agencies have certain responsibilities under the Act, which establishes federal regulatory authority over the safety of food additives, human and animal drugs, certain pesticides, and cosmetics."
United States. Department of Justice. Office of Legal Counsel
1995-10-13
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Scope of Treasury Department Purchase Rights with Respect to Financing Initiatives of the U.S. Postal Service: Memorandum for Mary S. Elcano, Vice President and Gerneral Counsel, United States Postal Service [and] Edward S. Knight, General Counsel, Department of the Treasury [October 10, 1995]
"This memorandum responds to the U.S. Postal Service's (USPS) request that this office reconsider and rescind an opinion issued on January 19, 1993, in which we responded to the Department of the Treasury's (Treasury) request for an opinion regarding the statutory relationship between the USPS and Treasury with respect to the USPS's financing initiatives. In the 1993 opinion, we concluded that (1) under 39 U.S.C. § 2006(a), Treasury's failure to purchase a USPS bond issue prior to the scheduled date of sale on the market proposed by USPS does not relieve USPS of further obligation to negotiate with the Treasury towards agreeable terms of sale, or permit USPS to proceed with the market sale as originally scheduled, as long as Treasury has duly declared its 'election' to purchase and continues to negotiate in good faith towards the purchase; and (2) the transfer of the proceeds of a bond offering by the USPS to a trustee for the purpose of having the trustee employ those proceeds to make and use investments to discharge outstanding USPS debt would require the prior approval of the Treasury under the provisions of 39 U.S.C. § 2003."
United States. Department of Justice. Office of Legal Counsel
1995-10-10
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Authority to Employ the Services of White House Office Employees During an Appropriations Lapse: Memorandum Opinion for the Counsel to the President [September 13, 1995]
"You have asked us to survey the authority available to the White House office to employ the services of White House employees during a lapse in appropriations. As you know, no salaries can be paid to any government employee, including those in the White House office, without an appropriation; so no White House employee could receive salary or other compensation payments during such a lapse. The Antideficiency Act further prevents federal officials from incurring financial obligations, such as the obligation to pay salaries, in advance of appropriations except as authorized by law. […] The Antideficiency Act and the organic statutes providing for the White House office and staff create three different authorizations under which certain White House employees may continue to work during a lapse in appropriations."
United States. Department of Justice. Office of Legal Counsel
1995-09-13
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Constitutional Limitations on Federal Government Participation in Binding Arbitration: Memorandum for John Schmidt, Associate Attorney General [September 7, 1995]
"You have asked for our opinion as to whether the Constitution in any way limits the authority of the federal government to submit to binding arbitration. Specifically, you have asked us to explain and expand on advice we issued on September 19, 1994, in which we confirmed our earlier oral advice that 'the Office of Legal Counsel no longer takes the view that the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, bars the United States from entering into binding arbitration.' Memorandum from Dawn Johnsen, Deputy Assistant Attorney General, to David Cohen, Director, Commercial Litigation Branch, Civil Division, re: Binding Arbitration (Sept. 19, 1994). Below, we reiterate this conclusion and, pursuant to your request, set forth the reasoning by which we reached it. In addition, we consider, again pursuant to your request, the various other constitutional provisions that may be implicated when the federal government enters into binding arbitration. We conclude that none absolutely bars the federal government from taking such action. We should point out, however, that Executive Order No. 12778 remains in effect. See 56 Fed. Reg. 55195 (1991). That order forbids litigation counsel for federal agencies from seeking or agreeing to enter into binding arbitration. Id. § 1(c)(3). Therefore, while a constitutionally valid statute may compel litigation counsel to enter into binding arbitration, litigation counsel may not voluntarily agree to binding arbitration."
United States. Department of Justice. Office of Legal Counsel
1995-09-07
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Government Operations in the Event of a Lapse in Appropriations: Memorandum Opinion for the Director, Office of Management and Budget [August 16, 1995]
"This memorandum responds to your request to the Attorney General for advice regarding the permissible scope of government operations during a lapse in appropriations. The Constitution provides that 'no money shall be drawn from the treasury, but in consequence of appropriations made by law.' […] The treasury is further protected through the Antideficiency Act, which among other things prohibits all officers and employees of the federal government from entering into obligations in advance of appropriations and prohibits employing federal personnel except in emergencies, unless otherwise authorized by law. […] With respect to the effects of this amendment, we continue to adhere to the view expressed to General Counsel Robert Damus of the Office of Management and Budget that 'the 1990 amendment to 31 U.S.C. § 1342 does not detract from the Attorney General's earlier analyses; if anything, the amendment clarified that the Antideficiency Act's exception for emergencies is narrow and must be applied only when a threat to life or property is imminent.'"
United States. Department of Justice. Office of Legal Counsel
1995-08-16
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Legal Guidance on the Implications of the Supreme Court's Decision in Adarand Constructors, Inc. v. Peña: Memorandum to General Counsels [June 28, 1995]
"This memorandum sets forth preliminary legal guidance on the implications of the Supreme Court's recent decision in Adarand Constructors, Inc. v. Peña, 63 U.S.L.W. 4523 (U.S. June 12, 1995), which held that federal affirmative action programs that use racial and ethnic criteria as a basis for decisionmaking are subject to strict judicial scrutiny. The memorandum is not intended to serve as a definitive statement of what Adarand means for any particular affirmative action program. Nor does it consider the prudential and policy questions relevant to responding to Adarand. Rather, it is intended to provide a general overview of the Court's decision and the new standard for assessing the constitutionality of federal affirmative action programs. Our conclusions can be briefly summarized. Adarand made applicable to federal affirmative action programs the same standard of review, strict scrutiny, that City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), applied to state and local affirmative action measures -- with the important caveat that, in this area, Congress may be entitled to greater deference than state and local governments. Although Adarand itself involved contracting, its holding is not confined to that context; rather, it is clear that strict scrutiny will now be applied by the courts in reviewing the federal government's use of race-based criteria in health, education, hiring, and other programs as well."
United States. Department of Justice. Office of Legal Counsel
1995-06-28
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Effects of a Presidential Pardon: Memorandum for the Pardon Attorney [June 19, 1995]
"This memorandum responds to your request for our opinion concerning whether a full and unconditional presidential pardon precludes the exercise of the authority to deport a convicted alien under 8 U.S.C. § 1251(a)(2), removes a state firearm disability arising as a result of conviction of a federal crime, or extends to the remission of court-ordered criminal restitution not yet received by the victim of the pardoned offender. We answer all three questions in the affirmative."
United States. Department of Justice. Office of Legal Counsel
1995-06-19
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Waiver of Claims for Damages Arising Out of Cooperative Space Activity: Memorandum for Conrad K. Harper, Legal Adviser, Department of State [June 7, 1995]
"This memorandum responds to your request for our opinion concerning a legal matter under discussion between the Department of State and the National Aeronautics and Space Administration ('NASA'). NASA has been negotiating executive agreements with Japan and certain other foreign States under which the United States and those States would agree to waive all claims, including subrogated claims, against the other for damages arising out of cooperative space activity. You have asked whether NASA is authorized to waive subrogated claims on behalf of other federal agencies, and if not, how a government-wide waiver could be implemented. In addition, you have asked whether the federal government may waive claims for damages to which state governments may be subrogated. We have concluded that Congress has not authorized NASA to waive such claims on behalf of other federal agencies. An amendment to the Space Act would be necessary to grant NASA this authority. At your request, we have considered a number of alternative sources of authorization for waiver of subrogated claims. While the full scope of the President's authority in this regard is unclear, we have concluded that the President may waive claims, including subrogated claims, against foreign governments, in exchange for a reciprocal waiver from the foreign government, and he may delegate that authority to an agency head."
United States. Department of Justice. Office of Legal Counsel
1995-06-07
